Dover Castle in Kent, on the south coast of England

Common Law Confusions

There are many legal terms that have different meanings in different contexts. 

“Consideration” is an obvious example. In contract law, this word refers to money or money’s worth; in civil and criminal procedure, however, it denotes something that should be taken into account when reaching a decision. 

“Civil law” is another example. Sometimes this term is used to draw a contrast with criminal law while, on other occasions, it is used to denote a legal tradition distinct from common law. 

Unfortunately, however, it seems to have escaped the attention of rather too many American lawyers that “common law” is itself another term with more than one meaning. Yet those who confuse these meanings frequently end up confusing themselves. 

The Many Meanings of “Common Law”

In fact, “common law” is a phrase that has four meanings. 

One is used to distinguish it from the civil tradition; a second is employed to distinguish it from statute; while the purpose of a third meaning is to distinguish it from equity. The problem is that most American lawyers (unlike their British, Canadian, and Australian counterparts) don’t seem to be aware of a fourth meaning. 

Court-Centric

But let’s start with the three meanings that are familiar. They share a clear, underlying theme, which emphasizes the role of the courts. 

When distinguishing the common law from the civil law, the point is to emphasize that, through an inductive method of reasoning that goes from the specifics of a case to a more general statement of law, the common law is made by judges. (The civil law, by contrast, operates by deduction from more general statements of law usually found in codes made by legislators and jurists.) 

A similar point is involved in the contrast with legislation: whereas statutes are created by legislators, the common law is made by judges. 

The last of these three meanings, involving the contrast with equity, serves to highlight which particular group of judges was or is involved in the making of a specific law. 

Democratic Deficit

But here’s the problem. To modern American sensibilities, the idea of a judge making law seems quite wrong. The doctrine of separation of powers teaches that the making of law is the preserve of the legislature, with the role of the judiciary confined to adjudicating upon disputes as to the meaning or application of that law. 

And yet American law students soon discover that each of the three meanings of the common law so far discussed emphasizes the fact that, in a common law system, judges — or, at least, appellate court judges — get not only to find and apply the law but also to make it. 

So most law students have at least a moment of confusion, where the law-making process is exposed as suffering from an inherent deficit of democracy. With their previous preconceptions of what judges are supposed to do now severely challenged, and with most law schools failing to teach a fundamental introductory course, most law students end up inventing for themselves a fourth meaning of “common law” that mitigates their palpable discomfort. 

The Reassuring Fable

The reasoning behind this invented meaning runs like this: 

If judges should not, in principle, be making law, and yet they do, there must be a good reason why the practice doesn’t fit the ideal. The only good reason is that the judges serve to reflect the views of the people, and not the views of the elite in Congress. So the judges must make the common law because it is the law of the common people. (This also explains why most state judges are elected.) 

Students do not, of course, keep their thoughts to themselves. On the contrary, they repeat this fiction to one another, so that the fable becomes self-reinforcing. And, before you know it, those students become practitioners who repeat the same fable as if it were the truth. 

Judge and Jury

Perceptive students realize pretty quickly that this purported explanation cannot possibly be true, because it leaves no room for the jury. Unfortunately, however, most students don’t even notice this flaw because they typically come across juries in their studies only in common law subjects like Contracts and Torts, whereas discussion of the separation of powers is confined to subjects within Constitutional and Administrative Law. 

But the point is surely clear. However haphazardly, juries exist to represent the views of the common people. If the judge already did that, there would be no need for the jury at all. So the judge must exist for some other reason. 

Custom

In fact, the false, concocted narrative confuses the common law with customary law. These two forms of the law are far from being identical. 

Customary law was what existed in medieval England before the advent of the common law. It involved local disputes being settled by local courts, which dispensed justice according to local customs. 

Henry II (1154–1189)

The person who forever changed all that was Henry II, who inherited the English crown in 1154. But Henry was actually French, spoke only Norman French, and did not move to England until 1163. When he made that move, he confronted two problems with customary law and its local settlement of disputes. 

First, the local courts’ decisions often seemed to have the effect of exacerbating disputes rather than settling them. Second, he found the courts’ enforcement of his powers of taxation rather unreliable. (Henry had, perhaps, the largest court in Europe at that time, and spent a fortune expanding and adding fortifications to Dover Castle, pictured above, on the south coast of England.) 

So Henry set about creating a new system of courts answerable directly to him

Common Law

Henry’s method involved establishing “eyres,” where a judge would travel from town to town to dispense justice. Since each judge would essentially take a circular route, over several months, that would always start and end in London, he was said to go “on circuit” — from which allusion the term “Circuit Court” derives. 

While on circuit, the judges often ignored or overrode local customs. But not always: some customs were adopted and applied throughout the kingdom, even in places where no such customs had existed before. 

This process of standardization of the law led to the effective downfall of the local courts and the creation of one body of law common to the whole of England. And it is from this that we derive the missing fourth — though, in fact, original — meaning of the term “common law.” 

Whose Courts?

It should now be clear who the judges in this common law system represented. They were, quite simply, the king’s men. And what they created, developed, and applied was the king’s law. 

This explains, for example, the doctrine of sovereign immunity, for the courts were not prepared to hold the king bound by his own laws. 

Even More Shocking

This history of the real meaning of “common law” is, of course, even more discomforting to modern American sensibilities than the fable noted earlier. For not only is it now clear that judges in a common law system make (and do not merely apply) law; it is also clear that they do so in the name of the king (or, in a republic, in the name of the government). 

So where does that leave the idea of the separation of powers? That’s a very good question. 

Bipartite versus Tripartite

The fundamental point is that the notion of a separation of powers between the legislature, executive, and judiciary is a creation not of the common law but of Americans themselves after they gained independence. Specifically, it found its voice among the Framers of the federal Constitution, who sought to create a system of checks and balances precisely because they had recently experienced the excesses of an autocratic king. 

But that Constitution left in place the common law. In fact, as the Ninth Amendment demonstrates, the Constitution actually presupposes the existence of the common law, and is itself super-imposed on top. 

But, unlike the tripartite separation of powers at federal level, the common law had only ever recognized a bipartite separation of legislature and executive. As befitting their role in making law, the courts were treated as part of the legislature and, in London, even sat in the Houses of Parliament. 

Two Inherent Tensions

So the American legal system suffers from two inherent tensions. 

One such tension comes from the fact that each state makes its own laws. So, while each, apart from Louisiana, has adopted a common law system, there is actually no common law in the United States in the original sense of that phrase. Indeed, one of the reasons for the founding of the American Law Institute was to try to develop more laws common to the whole nation. 

The other tension is that, while ordinary Americans learn that their Constitution provides a tripartite system of checks and balances, the common law expects its judges to think and act like those in a bipartite system, where they must make law as much as apply it. 

No wonder American lawyers so often get confused about what the term “common law” really means.